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Supreme Court to hear Clean Air Act arguments
March 23, 2015

The U.S. Supreme Court will hear arguments on the Clean Air Act and if the emission-cutting rules adopted in 2012 will indeed go into effect in April.

The rules, the first ever to require power plant to cut emissions of mercury and other pollutants were created by the U.S. Environmental Protection Agency (EPA) were decades in the making.

The Supreme Court case focuses on whether the EPA acted properly when it considered only public-health risks, and not industry compliance costs, in deciding whether to require coal and oil-fired plants to cut most emissions of mercury and other hazardous air pollutants, The Wall Street Journal reported.

The case could set important precedent on when and whether the agency needs to consider the potential regulatory costs to industries.

Then, in April, a U.S. appeals court will consider an early challenge to the EPA’s proposal to slash carbon emissions from coal-fired power plants, even though the agency hasn’t finished the regulations. The coming rules, which the EPA expects to complete this summer, are the center pillar of President Barack Obama’s plan to address climate change.

“The courts absolutely hold the key to President Obama’s environmental legacy,” said Thomas Lorenzen of Dorsey & Whitney LLP, a former Justice Department lawyer who supervised environmental cases.

Coal and oil-fired power plants are the dominant U.S. emitters of mercury, which can cause serious health problems for children as well as fetuses that can absorb the neurotoxin through their mothers. The regulations require plants to install high-tech scrubber systems to remove the pollutants.

The EPA concluded that costs weren’t a relevant consideration. It conducted an analysis estimating the costs to be $9.6 billion annually while valuing the public-health improvements between $37 billion and $90 billion, mostly through a reduction in premature deaths. The EPA reached those numbers by measuring “co-benefits” of the emission controls, which will filter other pollutants in addition to mercury and related toxics.

A group of 21 states, including ones that rely heavily on coal for electricity, and industry groups challenged EPA’s approach. The states in a court brief argued Congress “did not intend for EPA to act with deliberate indifference to cost when answering the basic regulatory question whether it is appropriate to regulate.” The states said the health benefits of the regulations, when focused specifically on mercury reductions, were just $4 million to $6 million a year.

An EPA spokeswoman said, “We fully believe that EPA acted properly under its Clean Air Act authority in regulating harmful toxic air pollution from power plants.”

If the Supreme Court rules against the EPA, the decision wouldn’t foreclose the agency from regulating mercury, but it would have to write new rules and give industry costs greater consideration.

A group of states led by West Virginia, along with Ohio-based Murray Energy Corp., say the Clean Air Act prohibits certain double regulation of existing power plants. Once the EPA regulated the plants for mercury emissions under one section of the law, it couldn’t then rely upon a different, rarely used provision to regulate greenhouse gas emissions, the challengers argue.

The EPA carbon regulations, proposed last June, call for a 30 percent cut in power-plant carbon emissions by 2030 based on emissions levels in 2005. The challengers argue the regulations ask for too much and should be stopped now.

 

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